A class action has been issued in the New South Wales registry of the Federal Court by applicants claiming to have suffered damage as a result of government action taken in banning live cattle exports. Partner, Anne Freeman and Law Graduate, Brendan May provide an overview of the claim in Brett Cattle Company Pty Ltd v Minister for Agriculture, Fisheries & Forestry & Anor.
Background to the Live Export Ban Class Action
In late May 2011, ABC’s Four Corners broadcast video footage taken inside Indonesian abattoirs of animals that had been shipped live to Indonesia from Australia. The harrowing images showed the abuse and cruel mistreatment of the animals in their handling and slaughter. The reaction from the public and animal rights activists was vocal and swift, demanding something be done to halt the practice. A number of Senators, as well as backbenchers of the ALP Government, threatened a revolt if changes were not made, and within a fortnight Senator Joe Ludwig, in his capacity as then Minister for Agriculture, Forestry and Fisheries, had signed two control orders that had the effect of temporarily suspending the export of all live cattle to Indonesia for six months. The orders were made under the Export Control Act 1982 (Cth) (the Act), and the Export Control (Orders) Regulations 1982 (Cth) (the Regulations). The first was immediately done to prohibit the export of live animals to specific locations in Indonesia, while the second was a blanket ban (the Second Control Order).
The Federal Government told the cattle industry and the public that the ban would stay in place until the proper treatment and welfare of animals throughout the whole supply chain could be ensured. The move angered the industry, which at the time valued the exports to Indonesia at over $300 million annually, and had instead called for a partial ban. The ban was lifted after one month.
It wasn’t long before legal action was threatened by the producers, farmers and exporters affected by the ban but it took until late last year for an originating application starting a representative proceeding to be lodged with the Federal Court.
The first cause of action pleaded by the applicants is that of misfeasance in public office by (then) Minister Ludwig. The second cause of action is related to the first, namely a declaration that the Second Control Order was invalid.
Misfeasance in Public Office
The word ‘misfeasance’ comes from Old French, and means to ‘wrongly do’. The tort itself is notoriously difficult to prove. While having its foundations as an ‘action on the case’, as opposed to negligence, the essential quality of the action is the intentional or recklessly indifferent infliction of harm, by a public officer, that results in loss or damage.
In Northern Territory v Mengel the majority of the High Court explained that the tort “is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.” As for the former (sometimes referred to in the language of ‘malicious’ intent or ‘bad faith’), the majority in Mengel indicated that intentional infliction of harm includes not only deliberate acts of harm, but acts (and omissions) which are done with “reckless indifference to the harm that is likely to ensue”. As to the latter (referred to as the ‘ultra vires’ category of misfeasance), rather than simply an act that a public officer knows is beyond their power that results in damage, there are additional requirements depending on the knowledge of the public officer. If there is actual knowledge that the act is beyond power, the plurality suggested that the risk of harm involved must be foreseeable, while if there is no actual knowledge, it is not enough to say that the officer ought to have known such an act was beyond power, rather that the public officer must have recklessly disregarded the means of ascertaining the true extent of his or her power. It is important to note that, regarding actual knowledge, the additional element of reasonable foreseeability has been criticised as dicta of the court in Mengel, and so not binding.
It has been suggested that such a requirement takes the tort further from its origins and purpose as creating personal liability for public officials due to misuse of public power, and conflates it with the tort of negligence.
Similar reasoning to Mengel was later employed by the majority of the High Court in Sanders v Snell. There the majority cited Mengel, and stressed the importance of identifying the intention with which the public official acts. Importantly, the Court in Sanders also picked up the dicta of Justice Brennan in Mengel that a misfeasance claim relying upon ultra vires can include acts that are invalid due to a lack of procedural fairness.
The tort is difficult to prove because of the focus on the requisite state of mind of the public officer, one described in the Federal Court last year as a “very serious allegation” by Justice Foster in summarily dismissing a claim for misfeasance in public office.
The Case as Pleaded
The Statement of Claim pleads that as of May 2011, prior to the control order being made, Minister Ludwig was aware that participants in the live export industry had voluntarily proposed and were taking measures to improve animal welfare in the trade with Indonesia. Furthermore, it pleads that the industry informed the Minister that:
- the major export period had recently begun and would continue till midNovember
- 376,000 head of cattle were currently being prepared for export within six months that could not be diverted to different destinations
- live exports to Indonesia represented around 80% of all Australian live cattle exports
- producers did not have the capacity to hold excess animals for the remainder of the dry season
- prohibiting live exports would cause significant loss and damage to farmers, producers and investment generally
- such a prohibition was unlikely to improve animal welfare.
That the Minister was informed of these issues is crucial to the success of the applicants’ claims. Against this background, the claim also pleads that there was no advice given to the Minister from his Department or any other source which recommended the Second Control Order be made, nor that it was a valid exercise of the Minister’s power.
The applicants also argue the Second Control Order was invalid as it was either made for a purpose extraneous to the purposes of the Act, or was ultra vires the Act due to being unreasonable and lacking proportionality. Accordingly, the applicants argue that the Minister was recklessly indifferent to the invalidity of the order and the loss he knew it would or would likely cause, and recklessly disregarded the means of obtaining legal advice as to the Order’s validity.
Thus, in order to further their chances of success, the applicants allege that, as opposed to solely an actual intention to cause harm (which would be difficult to make out), the Minister was also recklessly indifferent to the harm the Second Control Order would likely cause. In the alternative, the claim pleads that not only was the Second Control Order invalid, but the Minister recklessly disregarded the means of obtaining legal advice as to the extent of his actual power. As such the claim appears to avoid the contentious and difficult route of suggesting that the Minister actually knew the order was beyond his power to make and that the risk of the harm was reasonably foreseeable, whether to him or an independent observer.
For its part, the Commonwealth has filed a defence that says a report commissioned by Meat and Livestock Australia and Livecorp that is relied on by the applicants actually disclosed many more significant animal welfare issues than the applicants admit. The Commonwealth also goes into further detail as to the response to the report from RSPCA Australia, which was highly critical of the methodology and conclusions of the report, and which argued that it was clear there were significant risks to animal welfare in the way animals were handled and slaughtered in Indonesia, and that a majority of animals were subjected to significant levels of pain, fear and distress during these processes.
Furthermore, the Commonwealth says that the industry proposal given in May 2011, and the later industry plan given in June 2011, were both regarded by the Minister as an inadequate response to legitimate community expectations for improving animal welfare in the live export industry. The Commonwealth also detailed the community response (over 40,000 emails and a significant number of telephone calls) demanding that the live animal export trade cease. Crucially, the defence provides details of the advice received by the Minister as to the loss that relevant industry stakeholders would suffer, and denies that the Second Control Order was invalid. Rather, in answer to this allegation, the Commonwealth submits that a Minister is entitled to take into account a broad range of considerations in making such an order under the Regulations, and a legislative response to community concerns about animal welfare is well within the purposes of the Act.
Absent any targeted malice or reckless indifference to harm by the Minister, a lot will depend on whether the Second Control Order was within the power of the Minister under the Act and the Regulations, according to their purposes and provisions. Only if it established that it was beyond the power of the Commonwealth to make such an order can the applicants then argue the Minster either knew this was the case and made the Second Control Order anyway, or alternatively, recklessly disregarded the means of ascertaining the true extent of his power before making such an order that caused loss and damage, all of which will no doubt turn on the evidence available.